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IN THE HIGH COURT FOR ZAMBIA 2015/HP/1152

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AT THE PRINCIPAL REGISTRY
LUSAKA
(Civil Jurisdiction)

BETWEEN:
G~ 04 1
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yl/ PRINCIPAL

· TEDDY PHIRI 11 JUL 2018 ~ PLAINT!· F

AND . REGISTRY ,i_'I'-.· .

"-o. Box 50001. 1.ll">f'
THE ATTORNEY GENERAL 1ST DEFENDANT
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ROBSON ZIMBA 2No DEF NDANT

AGNESS IMASIKU
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BEFORE THE HONOURABLE . LADY JUSTICE M. CHANDA THIS 11™
DAY OF JULY, 2018 •

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APPEARANCES:
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For the Plaintiff •
• Mr 0. Ngoina of Messrs Lungu ,
Simwanza & Company
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For the Defendant •
• ·. Ms K. Ndulo
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AssistantI Senior State
Advocate' of Attorney General's
Chambers

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JUDGMENT

LEGISLATION REFERRED TO:

SECTION 53 (1) OF THE IMMIGRATION AND DEPORTATION ACT NO 18 OF

2010.

CASES REFERRED TO:

1. BIRD V JONES (1845) 7 Q3 742
2. HICKS V FAULKNER (1878) 8 QBD 167
3. HOLGATE MOHAMMED V DUKE 1984 AC 437
4. WRIGHT V COURT (1825) 4B AND C 596

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On 21st July, 2015 Teddy Phiri the plaintiff herein issued out of
the -High Court Principal Registry a writ of summons and
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statement of claim against the Attorney General, Robson Zimba

and Agness IIDasiku the defendants herein. The writ of
summons was duly amended on 25th Septem ~er, 2015. The
plaintiffs contention was that on 9th July, 2015 he was
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unlawfully arrested and lodged at Zambezi correctional facility as

a suspected prohibited immigrant.

The reliefs sought by the plaintiff were as follows:-

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1. Damages for false imprisonment
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11. Damages for unlawful arrest I
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111 • Damages for unlawful detention
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IV. Damages for defamation of character I
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v. Any other relief the Court may deem fit l

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Vl. Interest and costs . '

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The defendants filed their memorandum of appearance and
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defence on 14th October, 2015, in rebuttal to the plaintiffs
claims. The defendants refuted ·all the allegations by the plaintiff.
They averred that the plaintiff was never arrested as a prohibited
immigrant but for obstructing an officer on duny and conduct
likely to cause the breach of peace.
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The matter was heard on 12th April, 2016. The plaintiff called
two witnesses and the defendants also called two witnesses to
buttress their claims.
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The first witness was the plaintiff whose evidence was basically
that on or about 9th July, 201 '5 he went on a . business trip to
Zambezi District with his Chinese business asso iate a, Mr Yang.
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The plaintiff alleged that as they were iodging al Zambezi Motel,

he was awakened around 21:00 hours by Iuhe 2nd and 3rd

defendants who were in the company of his C~inese .associate.

The plaintiff stated that upon inquiring from the 2nd and 3rd
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defendants why they chose to approach his associate in the

night, they became annoyed and an exchange of lords ensued.
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He further testified that before he was arresteld and taken to

Zambezi prison, the two defendants threatened to take him to the
police cells. The plaintiff went on to assert thal he was grossly
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defamed by the 2nd and 3rd defendants when they detained him at
prison for one night as a prohibited immigrant. The plaintiff also
informed the Court that the incident happene~ I
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on 1Qth July,
2015 but he statement exhibited by the defendahts on page one
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of their bundle of documents showed that eveP.ts in question I

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occurred on 26th January, 2009. The plaintiff. refuted having

paid any admission of guilt fee to the police.

In cross examination the plaintiff confirmed that Ji_e was arrested

and charged for being a prohibited immigrant. H~ denied having

further cross examination the plaintiff concede! that the 26th

January, 2009 as indicated on the statement rbcorded by the
immigration officers was in respect of the date of issue of his
passport and not when the offence occurred. He stated that

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according to the statement recorded the offence took place on
lQth July, 2015 and that he was charged by the immigration
officers.

PW2 was Amos Musonda the Prison's officeri. '

The witness
produced a warrant and a prison register to c~onfirm that the
plaintiff was admitted to prison. The warrant bd
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the register
were marked as exhibits TPland TP2 respectivel}r. PW2 testified
that the plaintiff was detained as a suspebted prohibited
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immigrant.

In cross-examination when the witness was taske 1 to read the

contents of exhibit "TPl", he conceded that tJe plaintiff was
placed in detention at Zambezi prison for obstrudting officers on
duty.

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PW2 also conceded that the documents on i\>age 1 of the

defendant's bundle of documents showed that the plaintiff was
charged with obstructing an immigration officer on[ duty.

In re-examination PW2 clarified that exhibit ''TPl'' was a warrant

of detention for prohibited immigrants.

The defendants called the two immigration offic .rs hereinafter

referred to as DWl and DW2 in aid of their defence j

DWl was Agness lntasiku the Immigration Assistant who

testified that during the night of 9th July, 2015, she went to
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. .. Zambezi Motel with the 2°a defendant to verify on the

immigration status of a Chinese national.

DW 1 explained that when they approached the Chinese national

he informed them that he was legally in the cou!try and that his
resident permit was in his vehicle that was parJed outside. The
Chinese national also told them that the keys to the vehicle were
with the plaintiff who was in another room. The witness testified
that upon being led to the plaintiffs room by the Chinese
national, the plaintiff was offended and inquired thy they did not
go to his room during day time. She further stated that the
plaintiff accused them of being corrupt officers 1
d harbouring ill

that the officers were merely carrying out their duties proved
futile. l

It was DWl 's testimony that the plaintiff only released the car
keys after being told that he was to be charged with an offence of
obstructing officers on duty pursuant to Sectio~n 53 (1) of the
Immigration and Deportation Act No 18 of 201 0. The witness

station with the help of three other police officers who were sent
by the Officer in charge for reinforcement. _

DWI went on to state that the plaintiff was detain·e d at the police
inquiries office because as immigration departmeht they did not
have holding facilities. The witness further nJrated that the
plaintiff was taken to the immigration office the folhowing day 1Qth
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July, 2015 where he was formally warned and <!autioned for the
offence of obstructing officers on duty. ThereJster the plaintiff
was lodged at Zambezi prison. DW 1 informed thb Court that they
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were only prompted in conjunction with the police to reduce the
charge levelled against the plaintiff to that of donduct likely to
cause breach of peace upon the District Commilsioner's request
that he be treated with some leniency.

In cross-examination DWl told the Court that he plaintiff was

only released the following day on 10th July, 20115 which was a
Saturday, after he was fined K40.00 by the police

The witness also confirmed that under warn and caution

statement recorded by Robson Zimba for the offence of
obstructing officers on duty, the plaintiff denied the charge.
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In further cross examination, the witness state~ that although

the entry against the plaintiff in the prison'~ register read
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prohibited immigrant, he was detained for obstructing officers on

duty.

DW 1 testified that they used the warrant exhibited as TPl

(warrant of detention of suspected prohibited imJigrant) to lodge
the plaintiff in prison because those were the onl~ warrants that
the immigration department stocked.
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. . whose acts he is liable, or the result of his ordl ring, procuring,

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instigating or actively inciting the arrest. In Bird v Jones , a
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case cited by counsel for the defendant, Lord Fatterson defined
false imprisonment as a restraint on the liberr of the person
without cause, either by confinement in prison, stocks house,
even by forcibly detaining the party in the streetJ against his will.

It is trite that a law enforcement officer is authorised by statute

to make an arrest with or without a warrJt in prescribed
circumstances. It must be noted that in order for an officer to
make an arrest, there must be reasonable and probable cause.
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In Hicks v Faulkner , reasonable and probable oause was said to
mean an honest belief in the guilt of the accJsed based upon
reasonable grounds of the existence of a state !r circumstances
which assuming them to be true would lead ' ordinary man
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placed in the position of the accuser to the coQclusion that the

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person charged was probably guilty of the crime ijnputed.

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Section 53(1) of the Immigration and Deportation Act Number 18 of

201 0 creates an offence of obstructing an immikration officer in
the course of their duties. Section 53(1) reads:

"Any person who resists or wilfully obstructs an ijmigration officer in

the due execution of an immigration officer's duties or any person acting
in aid of such person commits an offence and is liaJle, upon conviction,
to a fine not exceeding two hundred thousand . enalty units or to
imprisonment for period not exceeding two years, or ~o both. "
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the department of immigration to enter and search without a
warrant the premises of a person which an office~ has reasonable
grounds to believe there is evidence in contraventlon of the Act.

A law enforcement officer is liable for false imprisonment if he

unlawfully arrests or detains another in circumstances which do
not amount to a valid arrest (see the case of Holg!te Mohammed
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v Duke }. A law enforcement officer would also bb liable for false
imprisonment if he detains the person for an un}easonable time
without taking him before a magistrate (see Wrigh~ v Court 4
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In the matter before me I have analysed the evidence adduced on

record and I must state that the plaintiff did bot favourably

endeavoured to mislead the Court by giving an irP.pression that

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the statement recorded from him by DW2 on lQth July, 2015

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produced at page one in the defendant's bundle ~of documents

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was dubiously recorded on 26th January, 2009 wlien infact not.
The plaintiff did however concede in cross examiJation that the
26th January, 2009 was actually captured on the statement as
the date of issue of his passport. Secondly, the picture portrayed

arrested and detained as a prohibited immigrant bty the 2nd and

3rd defendants. On the contrary, I find that tJe warrant of
detention marked as exhibit ''TPl'' shows that the plaintiff was
lodged into Zam.bezi state prison on account of havimg obstructed
immigration officers on duty and not as a prohibited immigrant. I
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... . therefore find the submission by the plainti f that he was

unlawfully detained on unmeritorious charJe of being a
prohibited im~igrant to have no ·semblance of autbenticity.

In contrast to the plaintiff the . 2nd and 3rd defendants gave

evidence in a straight forward and perfectly frank anner. I saw
nothing in their demeanor while giving evidencl which would
justify me coming to the conclusion that they were all liars
determined to conspire together to concoct a . .eries of false
allegations against the plaintiff.

Having carefully considered the evidence on recorf and having

me, I run more inclined to believe the version of ilie incident as

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plaintiff. I would not say the defendants in the matter before me

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were hasty overzealous and possibly inconsiderate irl the manner

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they dealt with the plaintiff. In my considered ~opinion the

defendants as immigration officers were doing their lawful duty in
verifying the status of the Chinese national who had\ travelled to '
Zambezi District with the plaintiff. It is clear to ·. e that the
plaintiffs reaction of resorting to anger and aggresslon towards
the defendants upon being asked to release the Jar keys to
enable the officers access the documents of the ChinJse national
was unreasonable and an unlawful over reaction.

Under the circumstances it is apparent that the defendants acted

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with reasonable and probable cause in charging and detaining

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• • the plaintiff for the offence of obstructing immigriation officers on

duty.·

The defendants were duty bound to carry out th<1ir operations at

any time without obstruction. A member of ihe public who
impedes law enforcement officer in the due ex~cution of their
mandate does so at his own peril. It is therefore Jny firm holding
that a prisoner whose liberty has been taken ~way by lawful
authority has no residual liberty enabling him to b~ng a claim for
false imprisonment against law enforcement offilers or prison
authorities in respect of his confinement within a barticular part
of the prison.

The defendants cannot therefore be condemned or the action 1

taken in this case. It is my observation that the plkintiff was the

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author of his own misfortune and his detention p¢nding formal
arrest was necessary owing to the fact that he was hot a resident
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of Zambezi District. I am satisfied that thereI was lawful
authority to justify the plaintiffs detention and ~ dismiss his
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claims with costs to the defendants.

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Dated at Lusaka this Il day of Yvt J- I ' 2018
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M.CHANDA
HIGH COURT JUDGE